The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1887-10-04
Supreme Court OF the Hawaiian ISL
ands--In Bazco. April Term. 1857,
HENINRIoH PETERSON ET Al. vs., JOSEPH
LAZARUS.

HENINRIoH PETERSON ET Al. vs.. IoSEFH
LAZARUS.
sEroEE JUDI, c. J., NscUl-Lx AND soSSASDES
-. Preston AND BIckESToN ~, DIn NOT ST.
0piEioA a CEief Jas:ios JUDD.
1t Is much to be regretted that We
have not the advantage of the opinion
of justices Preston and Bickerton in
this case. Judge Preston having been
counsel for the defendant IN the mat
ter of the sale Of the land and Judge
Bickerton having been counsel IN the
action before me, both were objected
10 and did not sit ST the hearing on
appeal
The case has been long time be
fore the Courts owing largely 10 the
fact that the plaintiffs reside in Ger
many. which has oeeasioned great de
lsy in communicating with them.
/ found in my opinion. filed August
:. 1886. that the defendant was .suff-
GENTLY well acquainted with the ma
ture and extent OF the premises offered
10 be sold. as not TO be deceived by
the false description IN the advertise
ment Of sale, and that therefore 1t
could not be said that there was q
gross mistake IN the essence Of the
contract. ! do not retire from that
opinion but affirm 1t. / said. in my
opinion, that other objections were
made by the defendant as 10 the SUI
fciency of the deed rendered. etc.
which were abandoned at the srgu-
ment before me. But 1t does not APP
pear in the record that these obiee-
tons were waived. and on achange Of
counsel they are renewed on the ap-
peal. which as repeatedly held. brings
the case before the appellate Court
Cis aooa.
Its claimed by the defendants there
Is no contract Of sale between them
telves and defendant
The contract as disclosed be the
auchoneer's sales book, Is between H
F. Glade. Administrator of the Estate
of II. SIhriever, deceased, and Joseph
Lazarus, whereas certain persons, to
wit. Heinrich Peterson and others,
claiming to be heirs Of the deceased
II. Schriever, ask for specific perform
ance of q contract made between them
and defendant
Ii the defendant had relied upon
this at the beginning. and had not ne
gouated with the plaintiffs attorney.
for q deed from the heirs OF Schriever.
l think this objection would be fatal
to the plaintiffs obtaining the relief
asked for But specific performance
Is never enforced unless the Court Is
satisfied that q good title Is offered to
the defendant 1t would be quite
within the power of the defendant to
say that he Is satisfied with the con-
veyance rendered. and in that case the
Court would be relieved from passing
upon II. 1t now being objected TO, 1
cannot say that there Is sufficient
proof that the parties executing it are
the heirs of II. Schriever
Since the sale the buildings on the
place were destroyed by the great fire
thstdevastated 6 large partof this town
But the defendant says In his answer
that he is willing 10 take the premises
Notwithstanding the buildings were
destroyed by fire, upon proportion
ate deduction being made for defcien-
cy II area below the amount called for
I am inclined TO consider that this
Is g waiver. but there Is much force
in the argument that 1t was condi-
toned upon the abatement in price
being made. But in consequence Of
this fire the Legislature. by an Act
which became q law subsequent to the
sale. have forbidden the erection of
any buildings within certain limits,
except such as are freproof. The lot
II question IS within these fire limits.
and the immediate effect of this law
Is to lower the value of real estate.
1t Is true these considerations might
have been pressed before the Court
below. but l cannot say that they are
too late here. The awarding of spe-
cifc performance is always g matter
addressed TO the sound discretion of
the Court, and the circumstances Of
the case have become so materially
altered since the sale that l do not
think it would be equitable to enforce
the contract now.
The bill should be dismissed
L. 4. Thurston for plaintiffs; W. A
Kinney for defendant.
Honolulu, Sept Is, 1887.
I concur in the above opinion.